Last Week in Antitrust Litigation (#009)

Week of May 12, 2025

Top Takeaways

1. Strategic Collusion Allegations in Dialysis Sector: Plaintiffs allege DaVita and Fresenius engaged in coordinated market division and supracompetitive pricing—highlighting renewed antitrust risk around parallel conduct and certificate-of-need maneuvering.

2. Concerns Raised Over Arbitration Fairness:  A novel challenge to AAA’s role in consumer arbitration markets could reshape the legal landscape for dispute resolution frameworks in consumer contracts.

3. Settlements Advance in Key Sectors: Courts approved multimillion-dollar settlements in generic drug and aerospace hiring cases—companies in these sectors should review compliance and HR policies.

New Cases Filed

United Food & Com. Workers Loc. 1776 v. Davita Inc. (D. Colo. May 9, 2025): Plaintiff, a self-funded employee health plan, filed a putative class action alleging a defendants engaged in market allocation, price-fixing, and other anticompetitive conduct in the market for outpatient dialysis services in violation of the Sherman Act. The complaint claims that the two dominant dialysis providers engaged in anticompetitive conduct including (a) tacit agreements not to object to each other’s expansion efforts via certificate-of-need processes, (b) parallel pricing at supracompetitive levels, (c) coordinated territorial allocations that avoided head-to-head competition in 77% of U.S. cities, and (d) misuse of the American Kidney Fund’s charitable premium assistance program to exclude rivals and steer patients to their clinics. Plaintiff alleges that this conduct led to inflated prices, reduced quality of care, diminished innovation, and fewer treatment options for patients and payers. Plaintiff seeks class certification, treble damages, declaratory and injunctive relief, and attorneys’ fees and costs.

Davidson Instruments, Inc. v. Parker-Hannifin Corp. (E.D. Tx. May 12, 2025): Davidson Instruments filed a complaint alleging that Parker-Hannifin unlawfully seized control of Davidson’s proprietary technology for fiber-optic pressure sensors used in jet engines in violation of, among other things, Section 2 of the Sherman Act. Davidson contends Parker misappropriated its trade secrets, fraudulently filed patent applications naming Parker employees as inventors, and deliberately published Davidson’s confidential optical circuit to destroy its secrecy and dominate the market. The complaint asserts that this conduct eliminated Davidson as a viable competitor in the market for innovation and development of fiber-optic pressure measurement sensors and systems for combustion turbine jet engines, raised significant barriers to entry, and enabled Parker to consolidate control over this critical aerospace technology. Plaintiff seeks treble damages, attorneys’ fees, injunctive relief, and interest.

Stephens v. Am. Arb. Ass’n, Inc. (D. Ariz. May 15, 2025): Plaintiff filed a putative class action alleging that the American Arbitration Association (“AAA”) unlawfully monopolized the U.S. consumer arbitration market in violation of the Sherman Act. The complaint claims that AAA maintains its dominance—handling over 90% of all consumer arbitrations—through predatory pricing, low arbitrator compensation caps, and restrictive procedural rules that discourage skilled neutrals and suppress consumer success rates. Plaintiffs assert that this conduct deters market entry by rival arbitration providers, deprives consumers of meaningful forum choice, and results in a biased, ineffective dispute resolution system where corporations prevail disproportionately. Plaintiff seeks injunctive relief to prohibit AAA’s exclusive designation in consumer contracts, structural reforms, treble damages, attorneys’ fees, and—for Arizona residents—state constitutional remedies including potential forfeiture of AAA’s franchise rights, and compensatory damages under both federal and state law.

The follow-on cases that were filed are:

• 3Red Partners LLC v. Permian Res. Corp. (D.N.M. May 12, 2025) (refiling a voluntarily dismissed case (see Dispositive Orders below) alleging conspiracy to coordinate and constrain domestic shale oil production, fixing, raising, and maintaining the price of crude oil and derivative products like in In re Shale Oil Antitrust Litig. (D.N.M.))

Dispositive Orders and Verdicts

Gurvey v. Live Nation Ent., Inc. (C.D. Cal. May 7, 2025): In this case alleging concert industry monopolization in violation of the Sherman Act, the court dismissed the claims against one defendant, Cowan, for failure to prosecute. The court previously issued an Order to Show Cause explaining why the claims should not be dismissed for failing to diligently prosecute the case. The court found that plaintiff did not submit a timely response to the Order to Show Cause, warranting dismissal without prejudice.

3Red Partners LLC v. Permian Res. Corp. (N.D. Ill. May 9, 2025): Plaintiff voluntarily dismissed its entire case without prejudice. It then refiled a new complaint in the District of New Mexico. See Follow-On Cases above.

Brzovic v. NCAA (D.S.C. May 11, 2025): In this case alleging that the NCAA’s eligibility rules constitute unlawful restraints of trade in the market for student-athlete services under Section 1 of the Sherman Act, the court denied the plaintiff’s motion for a temporary restraining order and preliminary injunction. Plaintiff sought to enjoin the NCAA from: (a) applying the “Five-Year Rule” to deny him eligibility to play Division I basketball in the 2025–26 season, and (b) enforcing the “Rule of Restitution” to penalize him or his institution should the court’s order later be vacated. The court held that (a) plaintiff failed to show a likelihood of success on the merits because the Five-Year Rule is not clearly commercial and may not be subject to antitrust scrutiny, (b) even if subject to scrutiny, the plaintiff failed to define a relevant market and demonstrate anticompetitive harm, and (c) individualized harm to eligibility or NIL income does not establish antitrust injury.

Picard v. NASCAR (M.D. Fl. May 12, 2025): In this pro se case alleging antitrust violations in the auto racing market under the Sherman Act, the FTC Act, and the Clayton Act, the court granted defendants NASCAR, IndyCar, and Liberty Media Corporation’s motion to dismiss. The court held that (a) the complaint failed to meet minimum pleading standards as it relied solely on vague and conclusory assertions without distinguishing among defendants or delineating separate causes of action, (b) no facts supported personal jurisdiction over Liberty Media Corporation under Florida’s long-arm statute or federal law, and (c) the FTC Act claim was legally deficient because private individuals cannot sue under that statute, warranting dismissal with prejudice of that claim and without prejudice as to the remainder, with leave to amend within 21 days.

Class Action Certifications and Settlements

State of Connecticut v. Aurobindo Pharma USA, Inc. (D. Conn. May 12, 2025): In this case alleging price-fixing, market allocation, and bid rigging among generic drug manufacturers in violation of various state antitrust laws, the court granted preliminary approval of a $39.1 million settlement with Apotex Corp. The court approved a notice plan and provisionally allocated 70% of the settlement to restitution—approximately $17.6 million to consumers and $9.7 million to state entities—with the remaining 30% reserved for notice, administration, and litigation costs. Eligible consumers have until July 24, 2025, to opt out or object, and the final fairness hearing is scheduled for August 12, 2025.

In re Generic Pharms. Pricing Antitrust Litig. (E.D. Pa. May 14, 2025): In this indirect purchaser action involving alleged price-fixing of generic drugs, the court preliminarily approved settlements between the End-Payer Plaintiffs and Apotex. The settlement class includes indirect purchasers in 48 states and U.S. territories who paid or reimbursed for specified drugs between May 2009 and December 2019. A final fairness hearing will be held no sooner than 135 days after class notice is disseminated.

Borozny v. RTX Corp. (D. Conn. May 14, 2025): In this case alleging that aerospace engineering firms—including RTX, Pratt & Whitney, and others—engaged in a no-poach agreement that suppressed competition in the labor market for aerospace workers, the court granted final approval of a series of settlements. The certified settlement class includes all individuals employed by the defendants as aerospace engineers or skilled workers in the jet propulsion systems industry from January 1, 2011 through January 3, 2025. Twelve individuals opted out of the settlement, and a separate order will address attorneys’ fees, expenses, and service awards.

***      ***      ***

If you have any antirust questions or would like more information about any of these matters, please contact one of the following authors:

Christian Lorenz Zach Martin  christian@kressinpowers.com zach@kressinpowers.com

This newsletter has been prepared by Kressin Powers LLC for educational and informational purposes only regarding recent legal developments and does not constitute advertising or solicitation. No legal or business decision should be based on its content. Neither this publication nor the lawyers who authored it are rendering legal or other professional advice or opinions on specific facts or matters, nor does the distribution of this publication to any person constitute the establishment of an attorney-client relationship. Those seeking legal advice should contact a member of the Firm or legal counsel licensed in their jurisdiction. The invitation to contact is not a solicitation for legal work under the laws of any jurisdiction in which Kressin Powers LLC lawyers are not authorized to practice. Confidential information should not be sent to Kressin Powers LLC without first communicating directly with a member of the Firm about establishing an attorney-client relationship.